The Maryland Department of the Environment has for many years sought to meet its obligations under the Clean Water Act and the Chesapeake Bay Total Maximum Daily Load in part by imposing obligations on municipal separate storm sewers (MS4s) beyond the statutory minimum imposition of control to the “maximum extent practicable” or “MEP.” Specifically, it has required “restoration” of 20 percent of the “untreated” — that is, not subject to street cleaning or the like — impervious surface in the jurisdiction even if the surface does not drain to the MS4. In May 2021 we discussed a decision of the Maryland Court of Special Appeals (the state’s intermediate appellate court) for the most part affirming Maryland’s general permit scheme for small MS4s, Maryland Small MS4 Coalition v. Md. Dep’t of the Env’t, 250 A.3d 346 (Md. App. 2021).

Last week, the Court of Appeals affirmed. Maryland Small MS4 Coalition v. Md. Dep’t of the Env’t, No. 25, Sept. Term 2021 (Md. June 1, 2022). It followed essentially the same reasoning as the Court of Special Appeals: the federal Clean Water Act sets a minimum degree of control from which permitting jurisdictions may depart as necessary to achieve water quality goals. Point source dischargers, like storm sewer system operators, may be subject to conditions necessary to mitigate impacts from other, unregulated discharges.

The court had previously decided a challenge to large MS4 permits as too lax brought by an environmental group, Md. Dep’t of the Env’t v. Anacostia Riverkeeper, 134 A.3d 892 (Md. 2016), and to medium MS4 permits as too onerous on the same grounds as the small MS4 challenge, Md. Dep’t of the Env’t v. Carroll Cty., 214 A.3d 61 (Md. 2019), cert. denied, 140 S. Ct. 1265 (2020). (We began this string of blog posts commenting on Carroll County.) The court therefore found itself bound to follow those prior decisions:

We hold that, pursuant to the doctrine of stare decisis, the holdings of Carroll County apply in this case. We hold that this case is governed by this Court’s prior case law and presents neither a material difference nor a change in circumstance that would justify reconsideration of this Court’s Carroll County decision.

Slip op. at 2.

Efforts by municipalities to impose impervious surface limits on or even to require “restoration” from private parties are common in Maryland. Further cost-shifting as would be common under the cleanup programs has not, to my knowledge, been attempted.

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Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights